Circumstantial Evidence and Summary Judgment

In Jenkins v. Big City Remodeling, No. E2014-01612-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015), plaintiffs had hired defendant general contractor to construct a home for them. General contractor, in turn, had hired defendant flooring subcontractor for the project. When the home was almost complete, it caught fire and resulted in a total loss. Plaintiffs sued the general contractor and subcontractor for negligence, including negligence based on the doctrine of res ipsa loquitur. The trial court granted summary judgment to all defendants. On appeal, the Court of Appeals affirmed summary judgment as to the general contractor but reversed as to the claim of negligence against the flooring subcontractor.

The facts established that the day before the fire, the owners had been in the home, and they had retained a key during construction. Further, the construction site was not fenced or otherwise blocked from public access. When the fire occurred, one of the only remaining projects was to stain the wood floors in the home. On the day of the fire, several subcontractors had been working on the house, including Julian Luu, who was working on the floor stain. Based on camera footage from a neighboring property, Mr. Luu was the last person to leave the property at around 6:10 p.m., and the fire started around 7:50 p.m.

Plaintiffs’ theory was that the flooring subcontractors, who had been known to smoke a lot on the site, “allowed flammable rags to remain on or near the exterior deck and also smoked cigarettes in the area.” Plaintiffs claimed that “the improper disposal of cigarette butts resulted in the stain-soaked rags igniting, causing the fire.” Although the fire destroyed any evidence of rags, buckets with staining rags and cigarette butts were found in a dumpster on the property. Plaintiffs’ expert testified that “he believed the fire began on the exterior deck,” but the expert admitted that he could not be certain and that he could not conclusively rule out arson or electrical problems.

The Court of Appeals first examined the negligence claim against the contractor, which was based on the doctrine of res ipsa loquitur. Res ipsa loquitur typically involves claims wherein “the injury was probably the result of negligence, even though the exact nature of the negligence is unknown and…it was probably the defendant who was the negligent person.” (internal citation omitted). To rely on this theory, the plaintiff must show: “(1) there is a ‘thing’ that caused the injury; (2) the ‘thing’ that caused the injury was under the exclusive control of the defendant at the time the injury occurred; and (3) the thing ‘was of such a nature to not occur without negligence.’” (internal citation omitted). Here, the Court affirmed summary judgment as to the contractor because plaintiffs could not show that the contractor had exclusive control. At the time of the fire, plaintiffs, subcontractors, and potentially the general public had access to the property. Under such circumstances, the contractor was not “responsible for or in control of all possible causes of the fire,” and thus could not be held liable for negligence under the res ipsa loquitur theory.

The Court next looked to the claims against the flooring subcontractor. While plaintiffs could not rely on res ipsa loquitur to proceed against the subcontractor based on the lack of exclusive control, the Court determined that plaintiffs’ negligence claim could proceed. The Court agreed with plaintiffs that “the circumstantial evidence related to the cause of the fire was sufficient to withstand the Flooring Subcontractor’s motion for summary judgment.” Here, the facts showed that Mr. Luu was the last person to leave the property shortly before the fire began; that Mr. Luu and his crew had smoked near the exterior deck before; and that the expert witness believed the ignition of staining rags could have caused the fire. The Court found that, because “negligence may be proven by circumstantial evidence,” plaintiffs had created a genuine issue of material fact to preclude summary judgment.*

Plaintiffs faced a common problem in this case—lack of evidence. Clearly someone did something wrong, but there was no hard evidence to establish who the faulty party was. The Court of Appeals, however, correctly concluded that negligence can be based on circumstantial evidence. Plaintiffs here had put enough together against the subcontractor to get past a summary judgment motion and proceed with their claims.

*Note: Justice Susano wrote a separate opinion concurring in part and dissenting in part, stating that he believed summary judgment as to the subcontractors should have been affirmed, as the “record does not contain evidence to support ‘but for’ causation.”